Durham v. Ciba-Geigy Corp., CIBA-GEIGY

• Decision Date: 17 November 1981
• Docket Number: No. 13402,CIBA-GEIGY,13402
• Citation: 315 N.W.2d 696
• Parties: 33 UCC Rep.Serv. 588 Mervin DURHAM, Plaintiff and Appellee, v.CORPORATION, a North Carolina Corporation, Defendant and Appellant, and Balcom Chemicals, Inc., a Colorado Corporation, d/b/a Growers Ag Service, Defendant, and Tom Varilek and Elvern Varilek, d/b/a Varilek Farm Service, Defendants and Appellees. . On Briefs
• Court: South Dakota Supreme Court

Page 696

315 N.W.2d 696

33 UCC Rep.Serv. 588

Mervin DURHAM, Plaintiff and Appellee, v. CIBA-GEIGY CORPORATION, a North Carolina Corporation Defendant and Appellant and Balcom Chemicals, Inc., a Colorado Corporation, d/b/a Growers Ag Service, Defendant and Tom Varilek and Elvern Varilek, d/b/a Varilek Farm Service Defendants and Appellees.

No. 13402.

Supreme Court of South Dakota.

On Briefs Nov. 17, 1981.

Decided Feb. 10, 1982.

Raymond De Geest, Lake Andes, and Thomas E. Alberts of Engel & Alberts, Avon, for plaintiff and appellee.

Lawrence L. Piersol and Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant Ciba-Geigy Corp.

John L. Morgan and Chip J. Lowe of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendants and appellees.

DUNN, Justice.

This action was commenced for recovery of damages suffered by appellee Mervin Durham (Durham) arising from an alleged breach of warranty by Ciba-Geigy Corporation (appellant), the manufacturer; defendant Balcom Chemicals, Inc. (Balcom Chemicals, Inc.), the distributor; and appellee Varilek Farm Service (Varilek Farm Service), the seller. Durham claimed that the herbicide "Milogard" failed to control the growth of the weed foxtail in his milo crop. Varilek Farm Service counterclaimed for the cost of the fertilizer and herbicides sold to Durham. Balcom Chemicals, Inc. cross-claimed against Varilek Farm Service for the balance due on its open account. The jury awarded Durham the sums of $7,500.00 for crop loss, $5,038.49 for fertilizer expenses and $2,465.00 for the "Milogard" purchased from appellant. It also awarded to Varilek Farm Service the sum of $7,503.49 and to Balcom Chemicals, Inc. $7,710.78 for their respective claims. The trial court awarded Durham interest on that part of the judgment representing fertilizer expenses and the cost of the "Milogard". This appeal involves only the question of appellant's liability. We affirm.

Durham purchased herbicide from Varilek Farm Service for use on his 1979 milo crop near Lake Andes, South Dakota. Varilek Farm Service broadcast the herbicide onto Durham's farm land in May of 1979. Durham incorporated the herbicide into the ground using a disc. The milo seed was double-row planted four to six days after the herbicide was incorporated, and planting was completed by May 20, 1979.

On June 1, 1979, Durham noticed the appearance of foxtail weed in his milo. He reported the presence of the weed to Varilek Farm Service, who relayed the complaint to appellant's sales representative. Appellant's representative examined Durham's farm and acknowledged that foxtail weed was present in the fields. Due to the foxtail weed problem, Durham's crop yield was low.

Appellant contends that the trial court erred in refusing to grant its motion for summary judgment based on Durham's failure to file a damage claim with the Department of Agriculture under SDCL 38-21-46. We disagree. SDCL 38-21-46 provides:

Any person claiming damages from a pesticide application shall file with the secretary on a form prescribed by the secretary a written statement within thirty days after the date that the damages occurred. If a growing crop is alleged to have been damaged, the report must be filed prior to that time that twenty-five per cent of the crop has been harvested.

Appellant argues that the filing requirements of this statute serve as either a condition precedent or a statute of limitations barring Durham's cause of action because he failed to comply with the filing requirements. This argument is not valid for several reasons.

First, SDCL ch. 38-21, which is entitled Agricultural Pesticide Application, establishes an administrative procedure to govern the issuance, suspension, revocation or modification of pesticide applicator or dealer licenses. Failure to comply with the filing requirement of SDCL 38-21-46 does not affect an individual's ability to bring a breach of warranty claim, but rather may result in the secretary of the Department of Agriculture refusing to hold a hearing for the denial, suspension or revocation of a license or certification for pesticide applicators or dealers. See SDCL 38-21-49.

Second, a plaintiff would generally have a four-year statute of limitations for a breach of warranty action. SDCL 57A-2-725. However, appellant's interpretation of SDCL 38-21-46 would establish a thirty-day statute of limitations. We do not believe that the legislature intended to create such a staute of limitation's disparity which could relieve many potential defendants from liability.

Third, appellant contends that statutes similar to SDCL 38-21-46 have been interpreted by other state courts to create a condition precedent or a statute of limitations to a claimant's recovery. See McArdle v. Stewart, 446 P.2d 379 (Okl.1968); Olmstead v. Reedy, 387 P.2d 631 (Okl.1963); and Cross v. Harris, 230 Or. 398, 370 P.2d 703 (1962). We do not find these cases persuasive to our fact situation, however, because each of these cases involved an action in trespass in which damages resulted from the spraying activities performed by an adjoining landowner. The case before us is for breach of contract.

Appellant next contends that the trial court erred in admitting the testimony of Sherman Koopal. Koopal testified that he applied the herbicide "Milogard" in 1979 to his milo fields, and that the herbicide failed to effectively control foxtail weeds in his fields. Appellant claims that because of the dissimilarity between Koopal and Durham in their farms' soils and farming techniques, the testimony should have been excluded as irrelevant. We disagree.

Generally, "(a)n issue as to the existence or occurrence of a particular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar, circumstances." Ellis v. Union Pac. R. Co., 148 Neb. 515, 518, 27 N.W.2d 921, 924 (1947) quoting 32 C.J.S. Evidence § 584 (1942). In the case before us, both Koopal and Durham purchased "Milogard" from Varilek Farm Service. They were the only South Dakota purchasers of this brand of "Milogard" in 1979. Both farmers claim to have incorporated the herbicide to a depth of two inches. Both farmers testified to the failure of the herbicide to control the growth of foxtail weed.

The testimony of the two farmers does indicate a few differences, namely: Koopal's soil was sandy loam, Koopal applied his own herbicide and incorporated it with a tandem disc, and Koopal used a single-row planting technique and repeatedly hoed and cultivated; Durham's soil was silt loam, Durham's herbicide was custom broadcast and incorporated with a tandem offset disc, and Durham used a double-row planting technique and did not harrow or cultivate his field. The two fields were located twenty-five miles apart.

The trial court found Koopal's testimony admissible after considering the evidence of similar difficulties experienced by both farmers following application of the same herbicide. (See Moosbrugger v. McGraw-Edison Company, 284 Minn. 143, 170 N.W.2d 72 (1969) wherein evidence of similar difficulties in identical machines was held admissible.) This court has held that the question of whether evidence is immaterial, conjectural or remote must be left to the practical judgment of the trial court and rests largely in its discretion. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977). We hold that the trial court did not abuse its discretion in admitting Koopal's testimony to show that the "Milogard" herbicide was defective in his field.

Appellant contends that the trial court erred in finding the disclaimer of warranty and limitation of consequential damages clause unconscionable and against public policy. Thus, appellant contends that Durham should have been denied recovery of all damages. We disagree. Appellant's conditions of sale and of warranty states:

CIBA-GEIGY warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes referred to in the Directions for Use ... CIBA-GEIGY makes no other express or implied warranty of fitness or merchantability or any other express or implied warranty. In no case shall CIBA-GEIGY or the Seller be liable for consequential, special or indirect damages resulting from the use or handling of this product. (The last two sentences are in bold print.)

However, the general information section of the label provides: "Milogard 4L controls annual morningglory, carpetweed, lambsquarter, pigweed, ragweed, foxtail, smartweed, and velvetleaf." (Emphasis added.)

SDCL 57A-2-313(1)(a) provides that:

Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

To create an express warranty, the seller need not use formal words such as "warrant" or "guarantee" or specifically intend to make a warranty. SDCL 57A-2-313(2). We follow the rationale of our prior decision, Swenson v. Chevron Chemical Company, 89 S.D. 497, 234 N.W.2d 38 (1975) and find that the label taken as a whole not only warrants that the chemical ingredients in the herbicide will conform to the label, but also expressly promises to the purchaser that "Milogard" is a selective herbicide developed to control foxtail and seven other weeds. The jury decided that this express warranty was breached and appellant does not question this finding on appeal.

The general rule regarding the award of damages arising from a breach of warranty states that the buyer "may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable." SDCL 57A-2-714(1). The measure of damages for breach of warranty provides that the buyer is entitled to...